Kitsap County officials are knee-deep in shoreline issues

UPDATE #2, Oct. 20
Kitsap County commissioners have decided to appeal the latest court
ruling to the Washington State Supreme Court. See the story I wrote
for the
Oct. 20 Kitsap Sun.

UPDATE, Sept. 25
Kitsap County commissioners have decided to ask the court to
reconsider its ruling that would invalidate the county’s Critical
Areas Ordinance when it comes to shorelines. See the story I wrote
for
today’s Kitsap Sun. I will have more details as they become
available.
——-

While Kitsap County officials gear up to rewrite the county’s
Shoreline Management Master Program, they have been handed a hot
potato they cannot ignore.

As I describe in a story in
today’s Kitsap Sun, the Washington State Court of Appeals has
thrown out the county’s shoreline buffers written into law when the
county commissioners updated the Critical Areas Ordinance.

Property-rights advocates feel vindicated, and rightfully so.
They have spent their own money — more than $100,000 — to fight a
county they feel should be standing up for their rights. (See
Karl Duff’s column from Feb. 25.) Meanwhile, the county uses
public money to fight them back. Victory is sweet for the winners,
but it comes at a price.

I hate to say it, but that’s the way things go. When
environmental advocates win, they also wonder why they have wasted
money battling the government. And if you are a government
official, you try not to lose to either side — which is not easy in
a case like this, because both sides were suing them at the same
time.

Supporters of property rights have many grievances, and they
have a right to speak up. But this week’s court decision must be
kept in perspective.

Did the county commissioners violate private property rights
when they increased shoreline buffers? Did they rely on the wrong
scientific studies? Did they mistakenly apply uniform buffers when
they should have considered the ecological value of each shoreline
segment?

Maybe, maybe not. But the court never got to those questions.
Let me recount the history.

Four years ago, when the county was updating its Critical Areas
Ordinance (see Title 19), the commissioners essentially decided
to leave 35-foot shoreline buffers in place until they updated the
Shoreline
Management Master Program (see Title 22). At that time, they
thought the update would be just a year or two away.

The Central Puget Sound Growth Management Hearings Board ruled
that the commissioners could not follow that course of action,
because such buffers would not adequately protect habitat for
salmon, some of which are listed under the Endangered Species
Act.

So the commissioners went back to the drawing board and approved
new shoreline buffers of 50 feet for urban areas and 100 feet for
rural and semi-rural areas. They said the buffers would get closer
scrutiny and might even be reduced during the shorelines plan
update.

Those buffers were challenged on multiple grounds by the Kitsap
Alliance of Property Owners. KAPO’s arguments were rejected by the
hearings board (which was not allowed to address constitutional
issues) and by Superior Court Judge Craddock D. Verser, who ruled
that the county had followed “a reasoned process to address the
necessity of protecting the identified functions and values” of
critical areas. See my
story of July 2, 2008.

That was before the State Supreme Court handed down a decision
that interpreted the intertwined Growth Management Act and
Shorelines Management Act as saying shorelines rules can be changed
only by amending the county’s shorelines plan. See my
story from Aug. 1, 2008.

And that was the controlling factor in this week’s decision. The
county commissioners — and KAPO — were right the first time when
they tried to delay any significant action on shoreline buffers.
The appeals court acknowledged the confusion created for cities and
counties by the Legislature and the State Supreme Court. You can
review the comments in
my story today or read the
Appeals Court opinion for yourself.

Why does it matter whether the buffers are approved under one
law or another? Besides the legal process, it is important to
understand that the laws are distinct in their philosophies and
procedures.

The Growth Management Act is a newer law, balancing the goals of
allowing development and protecting property rights against the
goals of protecting the environment and preserving rural areas. The
county approves its plans and ordinances — including the Critical
Areas Ordinance — subject to review by one of the growth hearings
boards appointed by the governor.

The Shorelines Management Act lays out permitted uses along with
specific provisions for protecting the shoreline environment. Some
say it is more protective of property rights. The county approves
its shorelines plan, subject to a veto by the Washington Department
of Ecology. In fact, Ecology has the right to deny any shorelines
permit approved by the county.

After the Supreme Court ruled that only shorelines plans can set
regulations for shorelines, I was told by one or more county
officials that Kitsap County might still have some hope of
prevailing. Unlike most counties, it turns out that Kitsap’s
shorelines plan does not list buffers when it comes to development.
Instead, the shorelines plan points people to the Critical Areas
Ordinance to find the required buffers — so there really is no
conflict between the two.

When it came to the court ruling, I guess that argument never
got off the ground, given all the other facts in the case.

UPDATE, Sept. 25
Kitsap County commissioners have decided to ask the court to reconsider its ruling that would invalidate the county’s Critical Areas Ordinance when it comes to shorelines. See the story I wrote for today’s Kitsap Sun. I will have more details as they become available.